N.Y. Comp. Codes R. & Regs. tit. 9 § 8004.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 8004.6 - Certain Technical Violations - No Reincarceration

(a) Technical violations for which no period of reincarceration may be imposed include the following specified violations:

(1) violating curfew;

(2) alcohol use, provided however that incarceration is permissible for alcohol use if the person is subject to community supervision due to a conviction for driving under the influence of alcohol;

(3) drug use, provided, however incarceration is permissible for drug use if the person is subject to community supervision due to a conviction for driving under the influence of drugs;

(4) failing to notify the parole officer of a change in employment or program status;

(5) failing to pay surcharges and fees;

(6) obtaining a driver's license or driving a car with a valid driver's license, provided however incarceration is permissible if either action is explicitly prohibited by the person's conviction;

(7) failing to notify the parole officer of contact with any law enforcement agency, provided however, incarceration is permissible if the person intended to hide illegal behavior. For the purposes of this section, contact with any law enforcement agency does not include a formal accusation of criminal behavior, or an arrest.

(b) Technical violations for which no period of reincarceration may be imposed in the parole revocation process also include violations of a special condition, other than that which may be specifically identified in subdivision (a) of this section, where the failure could be safely addressed in the community or that there exists other reasonable community-based means to address the failure which have not been exhausted.

(c) A technical violation case in which no period of reincarceration may be imposed may consist of:

(1) charges alleging the violative conduct specified in subdivisions (a) and/or (b),

(2) charges that allege technical violations but wherein, despite the presence of charges alleging conduct identified subdivision (a) of section 8004.7 of this Part, the charges are not of sufficient number to permit reincarceration as explained in subdivision (b) of that section.

(d) If the case has been identified as a technical violation case in which no period of reincarceration may be imposed, a notice of violation may be approved for prosecution and:

(1) If the releasee appears as directed in response to the notice of violation, the parole revocation process shall continue and the releasee afforded the right to a preliminary revocation hearing if such right is not waived; or

(2) If the releasee has intentionally failed to appear as directed in response to the notice of violation and has intentionally failed to appear within forty-eight hours after such time, no parole warrant may be issued and the violation charges shall be deemed sustained.

(i) In such case, notice of the decision shall be promptly served upon the releasee. Acceptable service in this regard occurs when the releasee is served with notice of the decision within a reasonable amount of time under the totality of the circumstances, and such service may include, but not be limited to, delivering the notice of decision to the releasee's approved address, or last known address if different than the approved address.

(ii) Within one month of the date the notice of decision was served upon the releasee, the releasee may move to vacate such sustained violation(s) if the releasee can show by a preponderance of the evidence that the notice of violation was not properly served or the failure to appear was otherwise excusable.

(a) The releasee may make this motion by paper submission only, filed with the Board of Parole Appeals Unit, at the Board of Parole, New York State Department of Corrections and Community Supervision, 1220 Washington Avenue, Albany, New York 12226. The motion must include a copy of the notice of decision. The motion shall also be on notice to the Department, including the Area Supervisor / Bureau Chief of the supervision office responsible for the releasee's supervision in the community, which notice must include a full copy of the filing with the Appeals Unit.

(b) The Department may respond to the motion by submission to the Board of Parole Appeals Unit. Nothing shall preclude the Appeals Unit or other Board staff from obtaining additional information as may be relevant to the case and decision, including information from Department staff and records.

(c) Following a review of the motion, any response submitted the Department, and any additional information that may be deemed relevant by the Appeals Unit, the Unit will make a recommendation to the Board of Parole for determination. The matter will thereafter be considered by at least one member of the Board for their determination.

(d) If it is determined that the releasee has shown by a preponderance of the evidence that the notice of violation was not properly served or the failure to appear was otherwise excusable, the revocation case will be reopened as may be directed.

(e) Where it is determined that the releasee failed to make the required showing, the automatic sustaining of the violation charges and revocation shall stand.

(f) Motions provided for in this subparagraph shall not be considered administrative appeals pursuant to Part 8006 of this Title, and the process for their review and determination may be further regulated pursuant to policy and procedures of the Board of Parole. The determination upon any such review shall be an exhaustion of administrative remedies on the motion and not subject to further administrative review or consideration by the Board.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.6

Adopted New York State Register May 3, 2023/Volume XLV, Issue 18, eff. 5/3/2023